Opinion
22394.
Decided on February 11, 2008.
TUCZINSKI, CAVALIER, BURSTEIN COLLURA, P.C., Andrew W. Gilchrist, Esq., Albany, New York, Attorneys for Troy Sand Gravel Petitioners.
GREENBERG GREENBERG, Mark D. Greenberg, Esq., Hudson, NY, and Joseph M. Catalano, Esq., Rensselaerville, NY, and Edward Fassett, Esq., Schenectady, New York, Attorneys for Respondents.
Petitioner Henkel Realty owns a 214 acre parcel of property located in the Town of Nassau. The property is located in the Town's "rural residential" district, where, pursuant to the Town's Land Use Regulations (Local Law 2 for 1986), commercial mining is a permitted use allowable by special use permit and subject to site plan review. In February 2004, petitioner Troy Sand and Gravel submitted applications for a special use permit and site plan approval wherein it sought to establish a 90 acre greywacke quarry on the land owned by Henkel Realty.
In September 2004, the Town adopted Local Law 3 of 2004, which imposed a one hundred eighty day moratorium on the acceptance and approval of commercial excavation applications. The Town Board extended the moratorium in January 2005 (Local Law 1 for 2005), July 2005 (Petitioner's Exhibit L), and January 2006 (Local Law 1 for 2006), which extended the moratorium through July 23, 2006. Notably, three days before the expiration of the final moratorium, respondents adopted Local Law 4 for 2006, which, in part, amended the Town's Land Use Regulations to prohibit all commercial excavation in the Town. In August 2006, petitioner Troy Sand and Gravel was notified that, pursuant to Local Law 4 for 2006, its February 2004 application for a special use permit and site plan approval had been rejected by the Town Board (Petitioner's Exhibit AA).
In September 2006, petitioner commenced a combined declaratory judgment/Article 78 proceeding wherein it challenged the August 2006 rejection of the special use permit/site plan review applications which petition was later amended to add a challenge to the adoption of Local Law 4 for 2006 ( Troy Sand Gravel Inc. v. Town Board of the Town of Nassau et. al., Rensselaer County Index No. 219221). A companion case was commenced challenging the adoption of Local Law 4 ( Hanson et. al v. Town Board of the Town of Nassau, Supreme Court, Rensselaer County, Index 219634). By correspondence dated January 17, 2007 ("So Ordered" by this Court on January 19, 2007) petitioner confirmed the parties' request that this Court resolve, first, the issues raised with respect to the validity of Local Law 4 for 2006 prior to considering the remaining causes of action asserted in the petition. By Decision and Order dated August 31, 2007 and October 19, 2007, this Court determined that Local Law 4 for 2006 was invalid.
In the meantime, in May 2007, the New York State Department of Environmental Conservation issued a permit under the Mined Land Reclamation Law authorizing petitioner to undertake mining activities on the Henkel parcel. On October 5, 2007, also while the validity of Local Law 4, 2006 was in question, respondents passed a moratorium prohibiting, in part, submission and review of mining applications (Local Law 2 of 2007). Following this Court's October 19, 2007 decision and order concluding that the Local Law was invalid, by correspondence dated October 22, 2007 (Petition, Exhibit RR), petitioners requested that respondents continue to process the February 2004 site plan approval and special use permit application in accordance with the Town's Land Use Regulations (Local Law 2 for 1986). Citing the October 2007 moratorium, respondents advised that it was prohibited from processing the applications as requested.
In a separate proceeding, respondents have challenged the Department's issuance of the permit ( Town of Nassau et. al. v. Grannis et. al., Albany Co. Index No. 7367-07).
Sometime prior to September 2007, TSG began performing "certain activities" including tree removal, on the Henkel parcel. Believing such work to be "clearcutting" as defined by the Town's Land Use Regulations and thus, prohibited, the Town sought, by Order to Show Cause dated September 24, 2007 (Lynch J.), an Order pursuant to Town Law § 268 declaring that the activity was unlawful. On November 2, 2007, the Town's Code Enforcement Officer issued a "Notice of Violation/Stop Work Order" wherein it advised petitioner that the parcel was being "developed without the required approvals from the Town of Nassau. . . in violation of the [Town's Land Use Regulations]" (Petitioner's Exhibit TT).
By Decision and Order dated November 16, 2007, this Court denied the application (Troy Sand and Gravel v. Town Board of the Town of Nassau and Planning Board of the Town of Nassau, Rensselaer County Index No. 219221)
By Order to Show Cause dated November 15, 2007 (Lynch, J.), petitioner now seeks an Order enjoining enforcement of the November 2, 2007 Notice of Violation/Stop Work Order. Petitioner argues that (1) the Notice of Violation/Stop Work Order is illegal and unenforceable because "[a]ll" provisions of the Town's land use regulations "pertaining to mining", specifically Articles V(E), VI(B)(3) and VI(F), are preempted by the New York State Mined Land Reclamation Law (Petition Paragraph 165, 169); (2) the Notice of Violation/Stop Work Order is illegal and unenforceable because it does not specify the activities that are in contravention of the Town's Land Use Regulations or identify the conditions under which the work may resume (¶¶ 182, 186, 188); and (3) that the Town's Land Use Regulations "in terms of requirement for Special Use Permit and/or Site Plan Review" are preempted and thus, illegal and unenforceable (¶ 193). Respondents counter (1) that the Local Law is not preempted, (2) that the issue is not ripe for review, and (3) that petitioners failed to exhaust their administrative remedies prior to seeking judicial review of the Notice of Violation/Stop Work Order.
At the outset, it must be noted that the issue presented on this Order to Show Cause is the validity of the November 2007 Stop Work Order/Notice of Violation and the provisions cited therein. So framed, the Court finds that the issue is ripe for review. Relevant to this question,
Local Law No. 2 for 1986 empowers the respondent's Code Enforcement Officer to issue a
Notice of Violation:
Whenever, in the opinion of the Code Enforcement Officer and after proper inspection there appears to exist a violation of any provision of this Local Law or of any procedure adopted pursuant thereto, the Code Enforcement Officer shall serve written notice upon the appropriate person responsible for the alleged violation. This notice shall inform the recipient of the following:
a. the nature and specific details of the violation;
b. the date by which the violation must be remedied or removed, which period shall not exceed thirty (30) days from the date of notice
(Article IX.B.9). The Local Law further empowers the code enforcement officer to issue a Stop Work Order:
Whenever the Code Enforcement Officer has reasonable grounds to believe that work on any building or structure or any use of land is occurring either in violation of the provisions of this Local Law, not in conformity with any application made, permit granted or other approval issued hereunder, or in an unsafe or dangerous manner, the Code Enforcement Officer shall promptly notify the appropriate person responsible to suspend work on any such building or structure or the use of any such land. Such person shall immediately suspend such activity until the time that the stop work order has been rescinded. The order and notice shall be in writing, shall state the conditions under which the work or use may be resumed, and may be served upon the person to whom it is directed either by delivering it personally to that person or by posting the stop order upon a conspicuous portion of the building under construction or premises in use and additionally sending a copy of the same by certified mail.
(Article IX.B.10). In the event of a challenge to the code enforcement officer's stop work order or notice of violation, it is the Town's Zoning Board of Appeals that is empowered to
reverse or affirm, wholly or partly, or. . . modify the order, requirement, decision, interpretation or determination appealed from and make such order, requirement, decision, interpretation or determination as in its opinion ought to have been made in the matter by the administrative official charged with the enforcement of such ordinance or local law and to that end shall have all the powers of the administrative official from whose order, requirement, decision, interpretation or determination the appeal is taken.
Town Law § 267-b(1); Local Law No. 2 for 1986, Article X).
There is no dispute, here, that petitioners did not appeal the issuance of the Notice of Violation/Stop Work Order to the Town's Zoning Board of Appeals. This omission does not comport with the settled principle that
one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law. This doctrine furthers the salutory goals of relieving the courts of the burden of deciding questions entrusted to an agency, preventing premature judicial interference with the administrators' efforts to develop, even by some trial and error, a co-ordinated, consistent and legally enforceable scheme of regulation and affording the agency the opportunity, in advance of possible judicial review, to prepare a record of its "expertise and judgment"Watergate II Apartments, v. Buffalo Sewer Authority, 46 NY2d 52, 57 [cit.om]). One need not exhaust available administrative remedies where the action is challenged as unconstitutional or wholly beyond its grant of power nor when resort to an available administrative remedy would be futile ( Lehigh Portland Cement Company v. New York State Department of Environmental Conservation, 87 NY2d 136, 140).
Here, petitioners concede that they did not exhaust the available administrative remedy. They argue, however, that the doctrine does not apply because (1) such effort would be futile and because (2) the instant challenge involves questions of law that cannot be resolved by the zoning board of appeals. On the latter issue, it must be noted that a zoning board of appeals is not empowered to determine the validity of the ordinance it is charged with interpreting ( Smith v. Town of Plattekill , 13 AD3d 695 ). The Court agrees that to the extent petitioners have asserted that the local law is preempted by the MLRL, it has raised an issue of law — i.e. the validity of Local Law No. 2 for 1986 — that cannot be resolved by the respondent zoning board. Thus, there exists an exception to the general rule and petitioners' were not obligated to raise this issue on appeal to the zoning board of appeals ( Herberg v. Perales, 180 AD2d 166, 169). The preemption issue is thus properly before this Court and will be addressed first.
The Mined Land Reclamation Law (New York State Environmental Conservation Law § 23-2701 et. seq., hereinafter, MLRL) was enacted to provide standard and uniform restrictions and regulations' applicable to the mining industry ( Matter of Frew Run Gravel Products v. Town of Carroll, 71 NY2d 126, 131). The statute was enacted in furtherance of a recognized policy to "foster and encourage an economically sound and stable mining industry and the orderly development of domestic mineral resources and reserves necessary to assure satisfaction of economic needs compatible with sound environmental management practices" (Environmental Conservation Law § 23-2703 (1); Gernatt Asphalt Products v. Town of Sardinia, 87 NY2d 668, 680). Accordingly, the statute empowers the New York State Department of Environmental Conservation to regulate the mining industry and expressly preempts and supersedes, "all other state and local laws relating to the extractive mining industry" (Environmental Conservation Law § 23-2703(2); Gernatt, Supra).
The statute does provide exceptions to the general preemption rule.For example, a town may enact a local law of "general applicability" that does not regulate mining (Environmental Conservation Law § 23-2703(2)[b]) and it may enact a local law that designates mining as a permissible use, allowable by a special use permit, provided that the conditions placed on the special use permit are limited to certain statutory conditions (Environmental Conservation Law § 23-2703(2)[b](i-iv)). It is only those laws that deal with the "actual operation and process of mining" that are superseded ( Hunt Brothers v. Glennon, 81 NY2d 906, 909). In order to determine whether a local law is preempted, it is necessary to distinguish "between ordinances that regulate property uses and ordinances that regulate mining activities" ( Gernatt Asphalt Products, Supra, at 682). The statute's supersession provision should be narrowly construed to preempt only local attempts to regulate the specifics of the mining or reclamation activity ( Preble Aggregate Inc. v. Town of Preble, 263 AD2d 849, 850).
In the Notice of Violation/Stop Work Order challenged herein, respondent's code enforcement officer cites Article II (F)(1), Article V(E M), Article VI (B)[3] and (F) of Local Law No. 2 for 1986 as the basis for his determination. The regulations, at Article II, establish four land use districts. The first cited provision, Article II (F) (1) prohibits the use of land "except in conformance with the regulations" (Petitioner's Exhibit A, page 6). In the Rural Residential district, where the Henkel parcel is located, the Local Law provides that three of seven designated industrial uses, including commercial excavation, are "allowable" subject to a special use permit and site plan review (Article II). The affect of this classification is that an applicant seeking to begin one of the three "allowable" commercial uses in the rural residential district must obtain a special use permit in accordance with Article VI of the Regulations and submit its site plan for review and approval in accordance with Article VII of the Regulations.
In the Town's Rural Residential District, there are, in total, 8 "allowable" uses subject to site plan review and special permit approval. Overall, there are 21 "allowable" uses is the Town's 4 Land Use Districts.
The respondent's local law provides a "site plan checklist" that requires certain submissions for Planning Board review, including, (1) drawing(s) indicating property boundaries, acreage, topography, existing watercourses; (2) a grading and drainage plan; (3) document(s) evincing the location, proposed use and height of proposed structures, parking and loading areas, pedestrian access, and outdoor storage; (7) location, design and construction materials of site improvements (8) description of sewage disposal method(s), construction and design; (9) description of water source(s), construction and design; (10) location of fire/emergency zones, energy distribution facilities, signage, buffer areas, outdoor lighting (Article VII (B) 1)(a-u)).
The special use permit process set forth in the land use regulations (Article VI) provides both "General Standards" applicable to the review of all special use permit applications (VI(A)), and "additional specific standards for certain uses", including "mining and excavation" (Article VI(B)(3)). The "General Standards" provide that in assessing whether to grant a special use permit, the Town must consider, "the health, safety, welfare, comfort and convenience of the public, in general, and that of the residents of the immediate neighborhood in particular, and the environmental impact, as well as. . .
1. The location and size of the use, the nature and intensity of the operations involved, the size of the site in relation to the use and the location of the site with respect to existing or future access shall be in harmony with the orderly development of the district;
2. The location, nature and height of buildings, walls and fences, and the nature and intensity of intended operations shall not discourage the appropriate development and use of adjacent land and buildings nor impair the value thereof;
3. All parking and service areas shall be screened at all seasons of the year from the view of adjacent streets and residential lots and the landscaping of the site shall be inhcaracter with that prevailing in the neighborhood;
4. The character and appearance of the proposed use, building, structures and outdoor signs shall be in harmony with the character and appearance of the surrounding neighborhood.
(Local Law No. 2 for 1986, Article VI)
This Court finds that the special use permit/site plan review requirements set forth in Local Law No. 2 for 1986 at Articles II, VI, and VII regulate property use, not mining activity, and are thus not preempted by the MLRL (See Petition, Fourth Cause of Action). As set forth above, the MLRL preempts only local laws that attempt to regulate mining activity ( Schadow v. Wilson, 191 AD2d 53, 56). Here, Local Law No. 2 for 1986 designates mining as an allowable use in the rural residential district (Article II), subject to special permit and site plan review and approval (Articles VI, VII). The provisions affect the location of mining activity only ( Town of Throop v. Leema Gravel Beds, Inc., 249 AD2d 970, 971; Town of Riverhead v. T.S. Haulers, Inc., 275 AD2d 774; Schadow, Supra). The affect on the actual process of mining is incidental, at best ( Id.).
Nor does the Court agree that Article V(E) of Local Law 2 for 1986 is preempted by the MLRL. Article V of respondent's land use regulations provides "Supplementary Regulations" applicable to "all land use districts". Article V(E), cited by the respondent's code enforcement officer within the at-issue Notice of Violation, provides that in all districts in the town, "excavation, stripping grading or filling", is permitted
"in such locations and in such a manner as to minimize the potential of erosion andsediment and the threat to the health, safety, and welfare of neighboring property owners and the general public, and shall be subject to special permit review as provided by Article VI of this Local Law".
Notably, here, the terms, "commercial excavation", "excavation/mining", "stripping", "grading", and "filling" are all terms that are defined in the Local Law. Only applicants seeking a permit for a "mine" to engage in "mining" as the terms are defined in the MLRL (Environmental Conservation Law § 23-2705(5), (8); 6 NYCRR § 420.1 (h), (k)) are subject to the permit requirements set forth therein. As set forth above, to the extent Article V(E) may be construed to affect the location of mining activity by subjecting the activity to a special use permit with specific reference to the provisions of Article VI, the provision is a valid exercise of the Town's authority to regulate the location of mining activity and is not preempted by the MLRL.
As noted, the petitioner advises only that prior to the issuance of the Stop Work Order, it was engaged in "certain activities", which did not constitute clear cutting (affidavit para 4). On this record, this Court is unable to determine whether the Code Enforcement Officer believed petitioner was engaging in "excavation", "stripping", "grading" or "filling". There is, obviously, no dispute that the petitioner had not obtained a special use permit to engage in any activity on the parcel and, it appears, has sought only a special use permit to engage in "commercial excavation" on the parcel as the term is used in and defined by the Land Use Regulations (Article II, Article XII).
This Court also disagrees with the contention that Article V(M) of the Land Use Regulations, also cited by respondent's Code Enforcement Officer within the Notice of Violation, is preempted by the MLRL. The cited provision, titled "Clearcutting" "strictly" prohibits "clearcutting as a forestry use" in order "[t]o promote native vegetation, reduce erosion, sedimentation, storm water runoff, the depletion of soil fertility and topsoil, and to encourage the maintenance of forest canopy in the Town" (Page 18). This "supplementary condition", is applicable to all land use districts equally and constitutes a valid exercise of the Town's authority to enact a "generally applicable" land use regulation. Though the enforcement of Article V(M), may, arguably, exert "incidental control" over commercial excavation, it does not regulate the mining activity ( Seaboard Contracting Material Inc. v. Town of Smithtown, 147 AD2d 4, 6-7, lv. denied 75 NY2d 707, appeal dismissed 74 NY2d 892, [where Court determined that the "Tree Preservation and Land Clearing Law of the Town of Smithtown" was not preempted by the MLRL"]; Patterson Materials Corporation v. Town of Pawling, 264 AD2d 510 [Local Law regulating the harvesting of timber not preempted by the MLRL]).
"Clearcutting" is defined within the Land Use Regulations to be, "[a]ny cutting of trees one (1) inch or more in diameter measured at four and one-half (4.5) feet above ground which results in a residual density of trees of less than thirty (30) square feet per acre. Residual density shall be determined by calculating the sum of the cross-section areas of all trees two (2) or more inches in diameter measured at four and one-half (4.5) feet above ground". (Article XII, page 48).
The Court does find, however, that the "Additional Specific Standards" applicable to special use permit applications for commercial mining (Article VI (B)(3)) are preempted by the MLRL. By its terms, the Local Law requires an applicant to comply with conditions that regulate the operation and reclamation of an applicant's mine. It is thus not a law of "general applicability" (see Environmental Conservation Law § 23-2703(2)) that is an exception to the supersession rule. For example, the "additional" standards applicable solely to mining and excavation require an applicant to submit for approval:
(1) a site plan;
(2) a time schedule for completion of the entire operation and/or each stage of the operation;
(3) an operations plan that includes the numbers and respective noise levels of trucks and machinery that will be used;
(4) a "progressive restoration and rehabilitation plan showing both existing contours and proposed final contours after operations are completed";
(5) a performance bond securing the rehabilitation;
(B)(3)(a-g).
In addition to the above submissions, in preparing the above plans and schedules, the applicant must "comply fully" with the following standards:
(1) there must be a buffer area of at least two hundred feet between the mining activity and the property lines and public roadways;
(2) the applicant has to provide additional screening (berming, plantings and/or fencing) where necessary to provide a visual barrier to the mining activity.
(3) the plans must indicate that mining or excavation will not occur within four hundred feet of a waterway;
(4) the plans must include perimeter fencing where necessary to protect the public health and safety as deemed necessary by the Town;
(5) the operating area during any stage of the mining activity cannot exceed two acres;
(6) the restoration and rehabilitation plan must provide that a supporting layer of topsoil and natural vegetative cover be restored to all areas;
(7) the plans must include the submission of a performance bond assuring the maintenance and rehabilitation of any Town roadways that might be damaged;
(8) the plans must provide that upon completion of the mining activity, the site is restored to be used in a means permitted in the zoning district.
(VI(B)(3)(h)(1-8)).
These "additional" requirements applicable to mining duplicate, and in some cases, conflict, with the regulations set forth in the MLRL and its implementing regulations (see, e.g. MLRL § 23-2711 (3)(a)(i-v) [appropriate setbacks, barriers, dust control, hours of operation determined by the DEC]; MLRL § 23-2713, 6 NYCRR § 422.2; 6 NYCRR § 422.3 [providing, in detail, the requirements for an applicant's mining plan and reclamation plan]; MLRL § 23-2715, 6 NYCRR §§ 423.1(a), 423.2 [reclamation bond]). In order to obtain a special use permit, the applicant must "comply fully" with these conflicting requirements, a result which contravenes the express purpose of the MLRL ( Phillipstown Industrial Park v. Town Board of Town of Philipstown, 247 AD2d 525, 528; Town of Throop v. Leema Gravel Beds, 249 AD2d 970 [only those provisions of the local law that imposed conditions upon mining and excavation special use permit applicants were superseded]; compare, Schadow, Supra, where applicant argued that Town's authority to deny special use permit for mining was preempted by the MLRL and the Court determined that ECL § 23-2703 (2) did not usurp a Town's authority to decide whether to grant or deny a special use permit based upon the general conditions prescribed by local law (empahsis added)]). Indeed, here, if the Town Board did deny the special use permit here after consideration of the general conditions, the determination would be upheld so long as it was neither arbitrary nor capricious ( Cipperley v. Town of East Greenbush, 262 AD2d 764, 765, Schadow, Supra).
Though petitioners contend that the entirety of the Local Law must be deemed invalid inasmuch as the invalid provisions are not severable from the valid, this Court disagrees. Notably, the issue is one of legislative intent, that is whether, "if partial invalidity had been foreseen [the legislature] would have wished the statute to be enforced with the valid part exscinded, or rejected altogether" ( Association of Surrogate and Supreme Court Reporters v. State of New York, 79 NY2d 39, 47-48 [citing People ex. rel. Alpha Portland Cement Co. v. Knapp, 230 NY 48, 60]). Severance is not warranted where there is evidence that the provision would not have been enacted unless it was enacted in its entirety ( St. Joseph Hospital of Cheektowaga, 43 AD3d 139, 146). Inasmuch as Local Law No. 2 for 1986 includes a separability clause (Article XIII (B)), Article VI(B) (3), which is preempted by the MLRL and is thus invalid, may be severed from the remaining, valid provisions of the Local Law ( Id.; Town of Ogden v. Manitou Sand Gravel Co., 252 AD2d 964, 966).
Having found that those provisions cited within the November 2, 2007, Notice of Violation and Stop Work Order, with the exception of Article VI(B)(3), are not preempted by the MLRL, the remaining issue is whether, as petitioners' contend, the Notice is unenforceable because it is not specific and fails to identify conditions under which the work may resume. On this issue, the Court finds that the above stated exception to the doctrine that one must exhaust available administrative remedies does not apply.
In Lehigh Portland Cement Company, 87 NY2d 136, Supra, the Court of Appeals reviewed the "futility" exception to the doctrine. After receiving two letters from the Department of Environmental Conservation's Chief Permit Administrator that the Uniform Procedures Act (UPA) did not apply to the permit applications plaintiff had submitted, plaintiff commenced an action seeking a declaratory judgment action that the UPA was applicable.The Court held that the Supreme Court improperly dismissed the action for failure to exhaust administrative remedies because the Department of Environmental Conservation had "clearly and unequivocally stated its long-established position" on the question raised by plaintiffs (Id., at 141).
Here, petitioners argue that an appeal to the Town's Zoning Board would be futile because the zoning board would not provide an unbiased review. In support of this contention, it asserts that the Town, "through its various personnel, boards, agencies, and committees have openly and repeatedly opposed" petitioner's operations, that four of the five Zoning Board members were appointed by the Town Board that enacted a Local Law banning commercial mining in the Town, one Zoning Board member "publicly commented" against mining activity at a Town Board meeting held in December, 2003, and because the Town Board has now sought review pursuant to CPLR Article 78 of the Department of Environmental Conservation's determination to issue a mining permit to petitioners (see Petitioners/Plaintiffs Memorandum of Law in Support of Motion Brought by Order to Show Cause" Brief at p. 3-4).
With respect to those provisions cited in the Notice of Violation and Stop Work Order, petitioner does not assert that there has been any explicit determination nor any "clear and unequivocal" statement of the Town Zoning Board's position. Notably, there are factual issues to be resolved (i.e. whether or not the "activity" is "clearcutting" as the term is defined in the Local Law) and there are no practical considerations present to permit this Court to conclude that "the only possible outcome" is that the Zoning Board would resolve these issues against the petitioners/plaintiffs ( Pyramid Company of Onodaga v. Hudacs, 193 AD2d 924, 925). Finally, even accepting that the Town Board is opposed to mining, this Court is unable to conclude that because one zoning board member, speaking as a citizen at a town board meeting over four years ago, voiced his opposition to blasting (See Petition ¶ 180), that the Zoning Board has predetermined the issues raised by the Code Enforcement Officer in the Notice of Violation/Stop Work Order (see Grattan v. Department of Social Services, 131 AD2d 191, 193, app. den. 70 NY2d 616).
Accordingly, based on the foregoing it is ORDERED AND ADJUDGED that
(1) except as limited above, the Notice of Violation/Stop Work Order dated November 2, 2007 may be enforced in accordance with the provisions of Local Law No. 2 for 1986; and it is further ORDERED that
(2) the parties are directed to attend a conference before this Court on February 13, 2008, at 2:00 p.m. at 112 State Street, Suite 1212, Albany, New York to develop a schedule for resolution of the remaining issues in the Verified Petition/Complaint dated November 8, 2007.
This memorandum constitutes the Decision and Order/Judgment of this Court. The original Decision and Order/Judgment of the Court is returned to the attorneys for the petitioners. The remaining papers will be held pending resolution of the remaining issues as set forth above. The signing of this Decision and Order/Judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from this applicable provision of that Rule respecting filing, entry and Notice of Entry.